As noted in the main Committee report, Australia’s treaty making process is one which has been scrutinised in a number of contexts, both by Parliamentary committees and by bodies such as the Productivity Commission. However, rather than justifying the current approach, those reviews repeatedly highlighted significant flaws in the Australian Government’s approach. For many years the Australian Government has failed to adequately respond to those critiques, or to make significant improvements to the treaty-making process. It is emblematic of that failure that following the 2015 report of the Senate Standing Committee on Foreign Affairs, Defence and Trade, Blind Agreement: Reforming Australia's Treaty-Making Process, the Australian Government refused to implement a single recommendation from that report.
The Australian Greens broadly support the very incremental recommendations in the main Committee report, but believe that in substance they do not go far enough. However there are significant concerns about Recommendation 4, calling for the Government to consider use of non-disclosure agreements. An approach of non-disclosure agreements for ‘key stakeholders’ selected by the executive risks further entrenching the secrecy and lack of transparency that has been so consistently criticised, and allowing major corporations and key lobby groups access to negotiating text before the agreement has been presented to democratically elected representatives in the Commonwealth Parliament. The Australian Greens believe that a high degree of transparency in negotiating agreements directly aligns with Australia’s national interest, and should be pursued further.
The submission by AFTINET provides a number of important recommendations that outline a stronger, more transparent and democratic approach:
1
Prior to commencing negotiations for bilateral or regional trade agreements, the Government should table in Parliament a document setting out its priorities and objectives. The document should include assessments of the projected costs and benefits of the agreement. Such assessments should consider the economic, regional, health, gender and environmental impacts which are expected to arise.
2
There should be regular public consultation during negotiations, including submissions from and meetings with all stakeholders, release of negotiating texts, and regular reports to JSCOT and parliament.
3
The Australian government should follow the example of WTO multilateral negotiations and the European Union and should release the final text of agreements for public and parliamentary discussion before they are authorised for signing by Cabinet.
Fundamentally, the Australian Greens believe that international agreements, particularly trade agreements, should not allow corporate concerns to override environmental and public interests. The Australian Greens want to see systematic reform of international trade agreements to enable national governments to fairly regulate in relation to labour or environmental standards of production, health standards, or other matters of legitimate public interest.
The Australian Greens reiterate the fundamental concerns that have been consistently highlighted through multiple committee processes, including through the Greens dissenting report to the 2015 inquiry:
Australia’s treaty-making process should be founded on the same principles of transparency that apply to the making of legislation and the conduct of parliament … without legislated change to the fundamental nature of Australia’s treaty making process the default position will always favour executive power over parliamentary and democratic participation. In turn, this encourages more secrecy, which is a hallmark of the current treaty making process, and which is not in the national interest …
It is little wonder critics of modern trade agreements see them as a self-interested takeover of democratic institutions by corporations. The treaty negotiation process as it stands is set up to feed these suspicions and justify these criticisms … The Greens believe the Australian government should not enter into any treaty processes that are not fully transparent and democratic, and that Australia should show strong leadership on this issue …
The Greens believe that economic, environmental and social impacts should be examined and presented to parliament prior to the commencement of treaty negotiations and prior to final agreement. The primary responsibility for this analysis should sit with independent statutory bodies …
Modern trade and partnership deals should include binding measures designed to protect and improve human rights and labour standards, and to mitigate and prevent environmental degradation. It is not fair that corporate profits are protected in binding agreements through state-to-state and investor-state settlement clauses, while important matters of public interest, such as labour, environmental and ethical standards, are not.
Recommendation
That the Australian Government undertake systematic reform to ensure a more transparent, democratic process for negotiating treaties, including releasing final texts of agreement for public and parliamentary discussion before they are authorised for signing by Cabinet.
Senator Janet Rice